Friday, January 06, 2012

Items from the Ekstrand Filing

A filing by Bob Ekstrand in the McFadyen lawsuit has revealed some interesting material about Duke’s initial response to Crystal Mangum’s false allegations. Ekstrand filed in response to Duke’s . . . miserly . . . approach to discovery—the University has turned over only 27 documents—some of which, according to Ekstrand, were duplicates.

Ekstrand’s brief included examples of material already obtained in discovery—and provides a good sense of why Duke has proven so . . . reluctant . . . to hand over material.

By far the most significant item is a March 17, 2006 e-mail from Dean Sue Wasiolek, sent to an array of top Duke administrators, including John Burness, Larry Moneta, and Tallman Trask:

Here’s the latest update on this situation. Most important is that the students who reside in this house have been fully cooperative and are concerned that their names will be in the press. Since they have not yet been officially charged with anything, they have asked that should the realty company (or anyone else at Duke) be asked for those names, that we not give them out since this is still just an investigation. Scott Selig has called Allenton Realy and alerted them to this.

The Durham police are, in fact, investigating an alleged rape/kidnapping at 610 N. Buchanan. On Monday, March 13, two strippers were hired to perform at 610 N. Buchanan. About 30 men were in attendance, all members of the Duke Lacrosse team. One of the strippers appeared to be on drugs. the men decided to pay the women early, and then asked them to leave. They refused and the men paid them more. The one stripper ended up passing out either on a porch or deck in the back of the house and the men carried her to the other woman’s car. At some point later, the passed out woman interacted with Durham police at the Kroger on Hillsborough Road and made the allegations. I believe she was examined at Duke ED.

Last night the house was searched. The men volunteered to engage in DNA testing and to take lie detector test. I believe the DNA testing was done.

Mike Pressler and Chris Kennedy are well aware of this situation. The men have denied all allegations--they obviously admit to hiring the strippers.

The Wasiolek e-mail confirms that the senior Duke administration knew from the start that the lacrosse players had fully cooperated (even to the extent of the captains volunteering to take lie detector tests) with the police inquiry. Less than two weeks later, when Mike Nifong began his pre-primary publicity crusade, he suggested something else—that, in fact, that players had erected a “wall of silence” to frustrate the investigation.

Duke administrators were under no legal obligation to correct the record. (Whether they had a moral obligation to do so is another story.) But the Wasiolek e-mail confirms that senior Duke administrators knew from the start that not only was the DA violating standard procedure by speaking early and often about the case, but that one key element of his publicity barrage—the lack of cooperation by the players—was demonstrably false.

Yet this knowledge (which, at the time, very few people outside the lacrosse team, their families, and their attorneys possessed) that the DA was publicly lying about Duke students appears to have had no impact in how Duke administrators initially responded to the case. Why was that?

The other intriguing item from the Ekstrand filing is a deposition from Associate AD Chris Kennedy, a consistently first-rate figure throughout the case. (Kennedy was quickly marginalized from discussions about how Duke should respond to Mangum’s allegations.)

Kennedy’s deposition provided an insight into the mindset of senior Duke administrators. For instance, he recalled a March 24 or March 25 conversation with Tallman Trask, in which Trask said “something to the effect of he would be amazed or astounded . . . if there was anything to the allegations.”

Obviously, public statements from Duke administrators near this time—most particularly the Brodhead April 5, 2006 “letter to the Duke community”—appeared to operate from a radically different premise. Why was that?

Kennedy’s deposition also provided useful context on how two particular actions by Duke helped shape public opinion in the case. The first came in the extraordinary decision to cancel the March 25, 2006 Duke-Georgetown game less than two hours before the game was to start. In response to a question from Ekstrand, Kennedy said he couldn’t recall an instance in which Duke had canceled an athletic contest in response to criminal allegations against team members, and added, when questioned again, that “I thought that somebody from the outside—in light of the newspaper article that appeared that morning in the News and Observer,"Dancer Gives Details of Ordeal”—I thought that that would send the message that that was, in fact, an accurate account of what had happened.”

Kennedy was right. Indeed, in their non-apology apology, the New York Times sports editors cited the unprecedented cancellation of the game and then the season as one reason for the paper’s presumption of guilt in its coverage.

The second came in Brodhead’s infamous April 20, 2006 remarks to the Durham Chamber of Commerce, shortly after the arrests of Reade Seligmann and Collin Finnerty, in which the Duke president declared of his students, “If our students did what is alleged, it is appalling to the worst degree. If they didn’t do it, whatever they did is bad enough.”

Kennedy was asked how the Durham community viewed this statement, and he responded, reasonably, "I think that someone without any knowledge of any of the facts, someone on the outside would again draw the conclusion that some kind of crime had been committed and that Brodhead believed they were guilty. And furthermore, I think it was incredibly indiscreet to say ‘whatever they did was bad enough.”

Finally, the deposition offers a revealing vignette. Kennedy spearheaded the (successful) NCAA appeal for the members of the team to obtain an extra year of athletic eligibility. He wrote the appeal document, and passed it along to the Duke counsel’s office for approval. The counsel eliminated items dealing with the on-campus threats to the students and the behavior of the Duke faculty toward their own students.

"...they were suffering. And you know, they were - - they were consistently, constantly branded as rapists or misogynists or rapists or racists , or at the very least, covering up for it. And they were branded that way. And local media , on campus, on Nancy Grace, in every possible form of communication they would turn on and find out that they were the worst scum of the earth.

"That's pretty hard for an 18-year-old kid away from home to deal with. And then, you know, one of the greatest supports, their coach, is gone."

Key senior administrators rejected the chance to do what they had to know was the right thing and, instead, sacrificed students they knew to be innocent in favor of pandering to psuedo political correctness.

These sort of revelations are clearly why Duke has desperately tried to avoid, or at least delay, discovery. They must want to be able to say that all the folk who behaved badly are gone or retired, and that there is no longer any justification for retribution.

Reading through the whole deposition, one comes away with the following:1. Kennedy was and is a man of honor 2. Brodhead, Trask, Aleva, Burness, and Wausiolek were and are moral cowards.

That Ryan McFayden, an innocent person, would still consider that the only recourse he has is to change his name should be played incessantly to Brodhead, et al until they can understand what harm they did in fact do.

Broadhead says, "If they didn’t do it, whatever they did is bad enough."

The fact that this guy is still enshrined as President of Duke is amazing. I, too, hope he is torched but at this point, this seems less about the individuals and more about the "institutional tolerance/acceptance" of outrageous, immoral, and cowardly words and deeds. Duke defines itself as moral partner with Durham.

When you stated that "Duke administrators were under no legal obligation to correct the record. (Whether they had a moral obligation to do so is another story.)", didn’t you mean to follow up with the statement, "Fortunately, President Brodhead did anyway"? When questioned at a press conference on March 28, 2006 about DA Nifong’s claim that the players had not cooperated, Brodhead set the record straight and thereby forced Nifong to publically admit the truth.

"As for the investigation, Nifong said it has been difficult to pursue because no one who was at the party is speaking about what happened. But during a news conference Tuesday evening, Brodhead said that some of the team members have cooperated with police.

Nifong said Wednesday that the three men who rented the house where the alleged rape happened -- Matthew Zash, Dan Flannery and David Evans -- did speak to police at great length after the party, but that since then most have gotten lawyers and are no longer talking."

http://www.wral.com/news/local/story/1091545/

Then, two days later, CBS News reported:

'Duke President Richard Brodhead told reporters, "Our information is the students gave lengthy statements in response to police inquiries, even before they had lawyers present."'

This story is also being followed at www.DukeCheck.com in a story posted Jan 2nd. The story labeled Chris Kennedy also references K C Johnson and his book as a source for info on the stripper party entertainment by the Duke basketball team two weeks before the Lacrosse team party.

Someone should have told Dean Sue not to hide her light under a bushel. The notion that there was a blue wall of silence was everywhere, helped along by "Blue Devil Made Them Do It." Allan Gurganous wrote, "'The "Don't Tell' part involved not snitching on one another."

That is a shame about Ryan McFayden. He deserved much better than Mr. Gurganous' gibe: "I know his parents love him; I hope they get him help." I have exchanged a few emails with him, and he struck me as polite, thoughtful, and intelligent.

At least Nifong had a reason, political advancement, for his actions. The Duke officials were merely praying and braying before a false god of political correctness. The only adequate punishment for Brodhead, Steel, et al, is "to the pain" and even that might not be sufficient.

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I am from Higgins Beach, in Scarborough, Maine, six miles south of Portland. After spending five years as track announcer at Scarborough Downs, I left to study fulltime in graduate school, where my advisor was Akira Iriye. I have a B.A. and Ph.D. from Harvard, and an M.A. from the University of Chicago. At Brooklyn College and the CUNY Graduate Center, I teach classes in 20th century US political, constitutional, and diplomatic history; in 2007-8, I was Fulbright Distinguished Chair for the Humanities at Tel Aviv University.

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